STATE OF NEW JERSEY v. NIRAJ R. JIVANI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01619-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NIRAJ R. JIVANI,

Defendant-Appellant.

March 22, 2016

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-06-0886.

Warren L. Fink, attorney for appellant.

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Niraj R. Jivani was convicted of two counts of operating a motor vehicle during a period of license suspension in violation of N.J.S.A. 2C:40-26(b). The statute, which became effective on August 1, 2011, makes it a fourth-degree crime for a person to operate a motor vehicle during a period of driver's license suspension or revocation resulting from a second or subsequent conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, or refusal to submit to an alcohol breath test, N.J.S.A. 39:4-50.4(a). On November 10, 2014, the trial judge sentenced defendant to two periods of incarceration.1 At that time, the judge did not have the benefit of our opinion in State v. Perry,2 439 N.J. Super. 514 (App. Div.), certif. denied, 222 N.J. 306 (2015), decided on March 3, 2015. Because our holding in Perry is on point and controlling, we reverse and remand to the trial court for entry of an order vacating defendant's convictions.

I.

On February 1, 2013, two different officers of the New Brunswick Police Department witnessed defendant operate his automobile in New Brunswick. At the time, both officers were aware that defendant had a suspended driver's license, and conducted a motor vehicle stop after observing defendant driving.3 The dispatcher confirmed that defendant had a suspended driver's license.

Defendant's driving record indicates two DWI convictions, one in 2004 and one in 2008. Defendant's second conviction for DWI occurred on August 6, 2008. After the two-year license suspension mandated for a second DWI conviction, N.J.S.A. 39:4-50(a)(2), defendant's driving privileges were not restored. Based on the premise that defendant's license suspension for DWI continued until his license was restored, a Middlesex County Grand Jury indicted defendant on June 27, 2013, charging him with two counts of violating N.J.S.A. 2C:40-26(b).

Before trial, defendant filed a motion to dismiss the indictment, arguing that, at the time he was charged with violating N.J.S.A. 2C:40-26(b), his driver's license was not suspended or revoked as part of a sentence imposed by a court under N.J.S.A. 39:4-50. Because the two-year suspension defendant received for his second DWI was completed in 2010, defendant argued that any further or continuing suspension, beyond the date of his two-year suspension, was not for DWI and therefore N.J.S.A. 2C:40-26(b) did not apply. The motion judge rejected defendant's argument, interpreting N.J.S.A. 2C:40-26(b) to mean that a driver's license is suspended or revoked from the day the Motor Vehicle Commission (MVC) or a court suspends that license until the day the Motor Vehicle Commission restores it.

At trial, in addition to both police officers, the State presented testimony from MVC supervisor Andrew Feller, who identified defendant's certified MVC driving abstract and provided explanations regarding various entries on the abstract. After closing arguments, the judge instructed the jury regarding N.J.S.A. 2C:40-26

[T]he statute upon [which] this charge is based provides as follows: It shall be a crime to operate a motor vehicle during a period of license suspension if the actor's license was suspended or revoked for a second or subsequent violation of driving while intoxicated.

In order for the Defendant to be convicted of this offense, the State must prove the following elements beyond a reasonable doubt[:] One, that the Defendant knowingly operating a vehicle[.] Two, that the Defendant's license was suspended or revoked for his second or subsequent violation of driving while intoxicated. And three, that the Defendant knew that his license was suspended or revoked.

Relevant to the issue in this case, the judge further charged

The second element that the State must prove beyond a reasonable doubt is that the Defendant's license was suspended or revoked for a second or subsequent violation of driving while intoxicated.

A driver's license is suspended or revoked from the day that the Motor Vehicle Commission or a Court suspends or revokes that license until the day the Motor Vehicle Commission restores it.

On appeal, defendant argues "[t]he trial court did not correctly interpret what constitutes termination of the suspension period under N.J.S.A. 2C:40-26." We agree.

The record reveals defendant's last DWI suspension was in 2008 and, as a matter of law, it would have been a two-year suspension. See N.J.S.A. 39:4-50(a)(2). It is, therefore, clear that on the date of his February 1, 2013 violations, defendant was not suspended for DWI, as interpreted in Perry. As noted, the trial judge reached this decision several months before our decision in Perry, in which we held "N.J.S.A. 2C:40-26 punishes those who drive while suspended for violations of the DWI[.]" Perry, supra, 439 N.J. Super. at 531. The facts here are virtually identical to those of the seven consolidated appeals in Perry.

The facts in McIntyre, one of the seven appeals in Perry, illustrate the similarities to the core facts of this case

Tammy McIntyre pled guilty to a second DWI on May 31, 2008, and received a two-year license suspension. Assuming McIntyre's suspensions ran consecutively, her final, two-year DWI suspension period ended on April 10, 2010. For reasons unrelated to the DWI convictions, she was ineligible to restore her license on October 10, 2012, when, for the fifth time since her DWI offenses, she was charged with driving while suspended. On February 26, 2013, an Atlantic County grand jury indicted her under N.J.S.A. 2C:20-26(b).

[Perry, supra, 439 N.J. Super. at 521.]

After reviewing the legislative history of N.J.S.A. 2C:40-26, we reached the following conclusion

N.J.S.A. 2C:40-26 punishes those who drive while suspended for violations of the DWI and refusal law, by exposing them to a criminal record and incarceration without parole when they drive during the court-imposed period of suspension. The statute's grave consequences are no doubt also intended to deter the behavior. Criminalizing driving during a period of administrative suspension extending beyond the determinate suspension term for the DWI or refusal offense would not implement legislative intent.

[Perry, supra, 439 N.J. Super. at 531-32.]

We discern no basis for not applying our holding in Perry to the facts of the case under review. The State argues that our decision in State v. Zalta, 217 N.J. Super. 209, 212-13, (App. Div. 1987), supports defendant's conviction in this case. We disagree. In Perry, we rejected essentially the same argument, noting that Zalta addressed "a very different question, namely, whether the Director of the former Division of Motor Vehicles had the inherent authority 'to keep a license in suspension beyond the determinate period of suspension imposed by the municipal court' in the context of N.J.S.A. 39:3-40." Perry, supra, 439 N.J. Super. at 524 (quoting Zalta, supra, 217 N.J. Super. at 213). In contrast, the case under review, like Perry, concerns an entirely different situation "a criminal statute specifying the circumstances under which, if convicted, a defendant would serve mandatory minimum jail time." Id. at 525. We find the State's remaining arguments similarly unpersuasive.

Based upon our holding in Perry, we reverse and remand to the trial court for entry of an order vacating defendant's judgment of conviction. Defendant's appeal also raised various evidentiary issues from his trial. In light of our determination that Perry is on point and controlling, we decline to address defendant's remaining arguments.

Reversed and remanded.

1 On the first count, the court imposed a term of nine months incarceration with a six-month period of parole ineligibility, to run consecutive to a sentence that defendant was currently serving. On the second count, the court imposed a term of sixteen months incarceration with a six-month period of parole ineligibility, to run consecutive to the first count and to the sentence that defendant was currently serving.

2 In Perry, we addressed "whether charges can be brought under [N.J.S.A. 2C:40-26] when the act of driving occurs beyond the determinate sentenced term of suspension, but before reinstatement, while the driver continues on administrative suspension." Id. at 519. We concluded that N.J.S.A. 2C:40-26 "criminalizes the operation of a motor vehicle only while the operator is serving the court-imposed term of suspension, and not thereafter." Ibid.

3 The first stop occurred at 3:47 a.m. and the second stop occurred at 10:47 p.m., approximately nineteen hours later.